IN THE HIGH COURT OF UTTARAKHAND

AT NAINITAL

Criminal Revision No. 8 of 2008

Jyoti Mehra and others

……..Revisionists

versus

State and others

.…………Respondents

Present : Mr. D.S. Mehta, Advocate, present for the revisionists.

Mr. P.S. Saun, A.G.A., present for the State.

Mr. Rajendra Singh, Advocate, present for the respondent no. 2.

Hon’ble U.C. Dhyani, J (Oral).

1.

Applicant-Smt. Jyoti Mehra, filed an application under

Section 125 Cr.P.C. for grant of maintenance allowance

from her husband. The minor children of the applicant were

also arrayed as co-applicants in the petition under Section

125 Cr.P.C. According to Smt. Jyoti Mehra, she was

married to the respondent Arun Kumar on 05.04.1989.

Arun was serving in army. Applicant remained with her

husband for sometime in Roorkee, thereafter she went to

her parental home at Shikohabad. Two daughters, viz.,

Parul and Shivani were begotten out of the said wedlock.

The applicant was also married earlier in the year 1987. A

son Aditya was begotten out of her first wedlock. That

marriage was abandoned/dissolved by the consent of

husband and wife. Her first husband remarried. Aditya

remained with the applicant. In the year 1997, Arun Kumar

left the applicant at her parental home. He had assured that

he would come and take her back, but he did not return. He

did not maintain the applicant and her daughters.

2.

An application under Section 125 Cr.P.C. was filed by the

applicant, in which the respondent agreed to pay ` 2500/-

(Rupees Twenty Five Hundred) per month. He sent the

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maintenance allowance to her for a year. But then the

application was dismissed in default of the applicant. The

applicant has no sufficient means to maintain herself and

her children. The respondent neglected her and refused to

maintain her and her children. It was also stated that the

respondent was serving as Electrician in the Indian Army.

3.

The respondent filed the written statement, denying his

marriage with Jyoti Mehra on 05.04.1989. The question of

begetting the children out of his wedlock with Jyoti,

therefore, does not arise. The applicant is legally wedded

wife of her first husband and Aditya was begotten out of

the wedlock with her first husband. She did not obtain a

divorce decree and therefore, the question of her marriage

with the respondent does not arise. The respondent never

paid any money to the applicants. She was able to maintain

herself alongwith her children.

4.

PW1 Jyoti Mehra and PW2 Nand Kishore were examined

on behalf of the applicant. DW1 Arun Kumar and DW2

Smt. Rajni@Rekha were examined on behalf of the

respondent.

5.

Learned Judge, Family Court, Roorkee, District-Haridwar

discussed the question as to whether the applicant was

legally wedded wife of the respondent? It was admitted by

the applicant that she had a husband, who abandoned her,

and permitted her to keep Aditya, the son, who was born

out of the said wedlock. The respondent has not only

denied his marriage with applicant, but has also denied that

the two daughters (applicants no. 3 and 4) were begotten

out of his wedlock with the applicant.

6.

Learned Judge, Family Court, Roorkee, District Haridwar

said that a photocopy of the certificate of marriage was

presented by the applicant, but the same was not proved.

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Neither the original was produced, nor anybody came to

depose that such certificate was issued. No oral evidence

was offered to show that the applicant and respondent were

seen together, living as husband and wife. No divorce

decree was obtained by the applicant to enable her to marry

another man. The divorce, if any, obtained before the

panches, was not recognized in Indian society.

7.

The court below therefore held that since the applicant was

not legally wedded wife of the respondent, therefore, she

was not entitled to maintenance.

8.

No document was